Federal Court Dismisses Instructors’ Claims That Anti-Harassment Policies Violated Their Free Speech Rights

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jul 08, 2024

Dr. Michael Stannard worked at Clovis Community College, one of the colleges in State Center Community College District (SCCCD). He attended a race-sensitivity training on January 7, 2021, the day after the riots at the US Capitol Building. During the training, Stannard commented “that the riot at the Capitol was ‘bad’ ‘and that the burning of minority-owned businesses during last summer’s riots was [also] ‘bad.’” Then, in a “Justice and Healing Circle,” Stannard reported commented that “children do better if they are raised by both biological parents,” rather than single-parent households. Stannard later denied making this comment and represents that he stated “children have a right to be raised by their biological parents, and that there was a philosophical argument for the biological two-parent family based on the ‘problem of origins,’ i.e., children who do not know their parents question their own origins.” The organizer of the meeting told Stannard that his remarks were offensive, and another participant threatened to leave the group if they did not move on from the topic.

SCCCD’s Human Resources Department conducted an investigation into Stannard’s two comments and interviewed Stannard in March 2021. On May 10, 2021, the President of Clovis Community College, issued the notice of conclusion of investigation. They concluded that Stannard’s comments did not rise to the level of discrimination in violation of District policy, yet his comments offended some employees. The notice encouraged Stannard to demonstrate empathy towards others and reflect on how his statements may impact others, to ensure an inclusive working and learning environment. The notice then stated SCCCD’s anti-harassment and anti-discrimination policies, including that SCCCD “does not condone harassment, discrimination, unprofessional conduct, or other misconduct in the workplace…”

Stannard claims that the matter “should never have gotten this far” and that the warnings and instructions in the notice were “nebulous and threatening” because they implied he had not demonstrated empathy, did not explain what “demonstrated empathy” meant, implied that he should reflect on how his statements undermined an inclusive working and learning environment, and included a “nebulous threat about ‘unprofessional conduct.’”

Another instructor, David Richardson is a self-identified “gay and conservative” history faculty member at Madera Community College, one of the colleges at SCCCD. On October 15, 2021, SCCCD required that its instructors attend a “College Hour” Zoom meeting on personal pronoun etiquette. Dr. Jamie MacArthur conducted the presentation and announced that they preferred “they/them” gender nonbinary pronouns. Under his name on Zoom, Richardson then filled out his preferred gender pronouns as “Do, Re, Mi.” Richardson argues that he did so, not as a joke, but to make “the serious point” that gender pronouns are “based on an irrational perception of reality” and that “it was not intellectually equitable to allow only certain people to pick preferred gender pronouns.” Nobody mentioned the Richardson’s pronouns during the meeting.

On October 18, 2021, MacArthur sent an email to Richardson, saying that they were contacting him because he had “what appeared to be a joke shared where someone might normally share their pronouns on zoom (do-re-mi).” MacArthur told Richardson that people in the trans community considered this extremely offensive and shared some resources on the topic. Richardson felt that his email was “threatening” and caused him to fear that he would be “cancelled” as a dissenting voice. Richardson responded to MacArthur’s email, referring to himself as “Do” in place of “I,” “mi” in place of “my,” and “they” in place of “you” and “your.” In Richardson’s email, he emphasized that he was not making a joke and accused MacArthur of disregarding his own choice of personal pronouns.

MacArthur contacted Human Resources and the union to request a facilitated discussion with Richardson. On November 1, 2021, SCCCD’s Employee Relations Coordinator emailed Richardson asking to speak to him regarding concerns over his use of pronouns. Richardson replied that “picking and choosing which personal pronouns people can and cannot use would amount to harassment and… a toxic work environment.” Richardson copied his supervisors and some faculty members on his email response because he thought MacArthur “was moving in the direction of ‘canceling’ him.”

SCCCD conducted an investigation into Richardson. The investigation concluded that Richardson (1) intentionally misused pronouns in a mocking manner for Jamie MacArthur eight times in the October 18, 2021 email; (2) intentionally used second-and third-person pronouns in a mocking manner in that email; (3) retaliated against MacArthur for raising concerns about is pronouns in the Zoom meeting and for seeking an informal resolution through HR; and (4) sent emails to Madera Community College staff and faculty as retaliation for MacArthur attempting to seek an informal resolution through HR in order to intimidate them into dropping their complaint. On May 17, 2022, the Vice President of Learning and Student Services gave Richardson a “Letter of Reprimand.” The letter instructed him to immediately stop using pronouns in a mocking manner and to act professionally when interacting with employees and students including over email. The letter also warned that further failure of this type may result in disciplinary action, and may lead to termination. SCCCD required Richardson to complete six hours of Diversity, Equity, and Inclusion training and to respond to several reflection questions.

Stannard and Richardson filed a lawsuit against SCCCD, SCCCD’s Chancellor  and Vice Chancellor of Human Resources. Stannard and Richardson alleged that the Chancellor and Vice Chancellor of Human Resources, acting in their official capacities, violated their First Amendment right to free speech by enforcing SCCCD’s anti-harassment and anti-discrimination policies. They argued the policies were vague and overbroad, amount to impermissible content-based and viewpoint discrimination, and have the effect of chilling speech through self-censorship. They requested prospective relief, injunctive relief, and declaratory relief. Richardson also brought six causes of action against SCCCD alone under state law. Defendants removed the case to federal court and filed a Motion to Dismiss for failure to state a claim and failure to establish standing.

SCCCD and the individual defendants argued they are immune under the Eleventh Amendment, which prohibits federal courts from hearing certain lawsuits against states. The trial court examined the Ex parte Young exception to Eleventh Amendment immunity. This exception allows plaintiffs to bring claims against officials in their official capacities for prospective injunctive relief, i.e. to bar officials from engaging in future behaviors.

The trial court found that both Stannard and Richardson’s requests were based on past conduct that was no longer “ongoing” and they did not adequately allege that the conduct would recur. Stannard’s investigation and Richardson’s discipline were not present or ongoing actions. Stannard and Richardson argued that these past events would chill future speech. The trial court found that this allegation was vague and did not provide enough information.

SCCCD also argued that Stannard and Richardson failed to establish that they were at risk of ongoing harm from self-censorship and chilled speech and thus could not sue.

The trial court explained that self-censorship must be based on an actual and well-founded fear that authorities will enforce the law or regulation that plaintiffs are challenging. To determine if plaintiffs have a well-founded fear of enforcement, courts evaluate three factors: (1) whether plaintiffs have articulated a concrete plan to violate the law in question, (2) whether the authorities have communicated a specific warning or threat to initiate enforcement proceedings, and (3) the history of past prosecution or enforcement.

The trial court found that Stannard had not shown that he had a “concrete” plan to speak in a way that violated SCCCD’s policies. SCCCD had not given any “specific warning or threat” to initiate proceedings against Stannard; it had only recited its policies and encouraged him to be empathetic. Additionally, SCCCD’s investigation found that Stannard had not violated SCCCD’s anti-discrimination policy. Therefore, even if Stannard made future comments about single-parent families or the Black Lives Matter Protests, his remarks would not be considered “discrimination” under SCCCD’s policies. The Court therefore held that Stannard’s alleged self-censored was a self-inflicted injury.

Richardson argued that SCCCD had an unwritten preferred gender pronoun policy, which chilled his speech because it was arbitrary and vague. The trial court found that Richardson had alleged a possible threat of future enforcement. The Letter of Reprimand ordered him to stop using pronouns in a mocking manner and threatened him with discipline if he failed to comply. However, Richardson failed to show how he has self-censored, because he did not alleged a “concrete plan” to make similar, future remarks about pronouns. Additionally, Richardson had not tied his previous discipline to the written policies that he and Stannard were challenging in this case.

The trial court held that Stannard and Richardson could not bring their free speech claims and granted SCCCD’s motion to dismiss. The trial court granted Stannard and Richardson 21 days leave to amend their complaint.

Stannard v. State Ctr. Cmty. Coll. Dist. (E.D.Cal. May 10, 2024, No. 1:22-cv-01250-JLT-EPG) 2024 U.S.Dist.LEXIS 86031.

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